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Friday, August 25, 2006

Public interest defence way around anti-terror law provisions for media, lawyer argues

Don ButlerCanWest News Service

Friday, August 25, 2006

OTTAWA - A federal lawyer presented a ''modest proposal'' Thursday that he said ensures a contentious section of the federal anti-terrorism law remains well within constitutional bounds, arguing that a public interest defence would limit the scope of the section.

Section 4 of the Security of Information Act makes it a criminal offence, punishable by up to 14 years in prison, to give, receive or possess a wide range of ''official secret'' government information and documents.

But Justice Department lawyer Robert Frater proposed that the section's scope is effectively limited by two things - the federal Access to Information Act, and a public interest defence that he argued is available in common law.

The RCMP used Section 4 to obtain search warrants authorizing raids on the home and office of Ottawa Citizen journalist Juliet O'Neill in January 2004 after she wrote a story about Maher Arar based in part on leaked government documents.

Lawyers for the paper and others have argued this week in Ontario Superior Court that the section is so vague and broad that it should be struck down for violating Charter of Rights guarantees of freedom of expression.

He told Judge Lynn Ratushny that the 1983 access act, which provides a right of public access to government documents unless they are specifically exempted, ''fundamentally improved our understanding of what could be given out and what could be withheld.''

It affects the Security of Information Act, he argued, ''because it is a relevant indicator of what secret official information is. Does the access act help me know if I'm entering a zone of risk? I say, of course it does.''

Frater also said Thursday that those who release or distribute secret official information can escape criminal conviction if they can convince a court they were acting in the public interest.

Section 4 is silent on public interest as a defence, but Frater said both Parliament and the Supreme Court have accepted public interest defences in other criminal laws.

Ratushny, he suggested, could reasonably read a public interest defence into Section 4.

''There's nothing illegitimate in considering, as a matter of principle, whether that defence exists.''

The media's main concern, he said, is that government officials might unreasonably withhold authorization to release information of pressing public interest.

''To the extent that we need a safeguard in this statute, it's against that possibility - that authorization will be unreasonably withheld. If you have a public interest defence, it alleviates that concern.''

Such a defence, along with the option of seeking judicial review, he argued, ''ensures a check on government power that is responsive to free speech concerns.''

Though Section 4 forms part of the federal anti-terrorism law, Frater said its main purpose is to deter "the unauthorized release of secret official government information.

''It's about the breach of trust essential to the relationship between the government and its employees.''

In a factum filed with the court, Frater said deterrence of leaking underlies Section 4's criminalization of receipt and retention of secret information.

As well, he said, criminalizing receipt and retention ''is consistent with general criminal law practice that focuses on transactions Parliament wishes to deter. Thus the thief and the fence, the drug trafficker and the possessor, the prostitute and the john, are all liable to prosecution to attempt to stop the conduct in question.''

In the event Ratushny strikes down all or part of Section 4, Frater asked the declaration of invalidity be suspended for one year to permit Parliament to amend the section. A parliamentary committee is currently studying the section, and is expected to report in late December.

If the search warrants authorizing the raids on O'Neill are quashed, Frater also asked Ratushny to hold property seized during the raids for 30 days to allow the government to apply for a new search warrant under different authority.

Tuesday, August 22, 2006

PEJ News - C. L. Cook - I'll admit: I'm a sucker for a well turned phrase. And Dubya's overworked PR machine has provided a plethora of, if not veritable, then memorable examples of these. Pressed yesterday during a Q & A with reporters to explain his umpteenth repetition of an implied connection between Saddam Hussein's Iraq and the September 11th attacks, George Bush unveiled the new and improved, rebranded logo for his long-stale War on Terror label.

www.PEJ.org

Presenting the Freedom Agenda:George W. Bush's Newly Birthed Spin

C. L. Cook

PEJ NewsAugust 22, 2006

It has all the elements: Short and punchy; vague and open to interpretation; historically vacant and wilfully ignorant of the current situation; sizzling with sound bite pizzazz to appeal to a mindless press. In short, a real winner!

"The terrorists attacked us and killed 3,000 of our citizens before we started the freedom agenda in the Middle East."

The Freedom Agenda

Usually these PR gems are saved for major addresses and such, and so may have the plans for the debut of this sure to become immortal bit of flackery been; but as another great maestro of the turn of a phrase once cautioned: "The best laid schemes o’ mice an’ men / Gang aft a-gley."

A-gley sums up the recent careers of George and his merry band of nitwits nicely. But this is no ode to mice we've seen unfold across the Middle East these last terrible years. And it may be said, has been said, that George and his wrecking crew never had an ounce's concern for democracy, or its implicit agenda of freedom.

Risking falling into the dread "conspiracy theorist" ash can, I wonder if the reputedly linguistically challenged, intellectually awkward George of the Bungle really let go his load prematurely with TFA, or was this just another clever way to have the press, and other useful idiots, send his semaphore up the old flag pole for him to see who would salute? It certainly wouldn't be the first time.

Here's a snippet from Bush's epic encounter with the fourth estate yesterday.

QUESTION: What did Iraq have to do with it?

BUSH: What did Iraq have to do with what?

QUESTION: The attack on the World Trade Center.

BUSH: Nothing. Except it’s part of — and nobody has suggested in this administration that Saddam Hussein ordered the attack. Iraq was a — Iraq — the lesson of September 11th is take threats before they fully materialize, Ken. Nobody’s ever suggested that the attacks of September the 11th were ordered by Iraq.”

Well, I might have been premature with the whole Bush cleverly planted this meme purposefully thing; might be a bit of a stretch. It's possible he really did get flustered enough, being unused to the media sassing back, that he really did spill the beans on the administration's next Newspeak headline.

Now, the fun will be seeing what, after all those pencils worn to stubs at Bush's PR HQ to get to; "The Freedom Agenda" are gonna come up with next. Will it be in time for His next big public address? "Quick somebody, call up David Frum!"

Perhaps it's much ado over nothing. Bush doesn't really need new material; he has been reading from the original script for years. Why mess with a good thing now? Why indeed. George and company seem intent on carrying through their own "agenda" to make of the Middle East a cauldron, a crucible in which to forge their vision of the future.

Yesterday's little fracas with the press is just one of many examples of the nation's unease with the direction Bush and his tight group are taking the country. When I say, "the nation" I mean of course the wafer thin elite ruling the airwaves and holding most of the wealth. It seems the short leash those masters of America thought contained their servant George is proving too thin to constrain some of his baser instincts. But, a rap on the nose with a rolled newspaper may too be too little too late to bring him to heel.

To George and Dick, Don and Richard, Paul and Doug, their project has proven a great success so far. They have accomplished, in part, what they set out to do; now all that remains is to finish the job in Iran and Syria, Lebanon and Pakistan.

And if that can't now be called 'The Freedom Agenda,' it will be called something else,but to they it will be simply a rose by another name.

C. L. Cook is a contributing editor to PEJ News, and host of Gorilla Radio, a weekly public affairs program, broad/webcast from the University of Victoria. You can check out the GR Blog here.

After months of widespread frustration in Afghanistan over corruption, the economy and a lack of justice and security, doubts about President Hamid Karzai have led to a crisis of confidence in the country.

Interviews with ordinary Afghans, foreign diplomats and Afghan officials make clear that the expanding Taliban insurgency in the south represents the most serious challenge yet to Karzai's presidency.

The insurgency has precipitated an eruption of doubts about Karzai, widely viewed as having failed to attend to a range of problems that have left Afghans asking what the government is doing.

Corruption is so widespread, the government apparently so lethargic, and the divide between rich and poor so great, that Karzai is losing public support, warn officials like Ahmad Fahim Hakim, vice chairman of the Afghan Independent Human Rights Commission.

"Nothing that he promised has materialized," Hakim said, echoing the comments of diplomats and others in Kabul, the capital. "Beneath the surface it is boiling."

For the first time since Karzai took power four and half years ago, Afghans and diplomats are speculating about who might replace him. Most agree that the answer for now is no one, leaving the fate of the U.S.-led military involvement in Afghanistan intimately tied to Karzai's own success or failure.

On Tuesday, Karzai's office announced that he had spoken that day with President George W. Bush, who assured him of continued American support. Karzai had also accepted Bush's invitation to visit Washington.

Karzai, a consummate tribal politician, has been the cornerstone of the U.S.-led effort to create a centralized democratic government in Afghanistan to replace the Taliban government driven from power in 2001 after the Sept. 11 attacks on the United States.

To his supporters, he has managed to keep the peace in a fractious society by giving regional warlords and armed leaders a stake in power, while managing to set the country on the road to a democratic future.

"The perception of growing insecurity has affected the psyche of the Afghan people," Jawed Ludin, the president's chief of staff, said in a telephone interview from Kabul. But he called it a reality check rather than a crisis.

He said that people "still trust" Karzai and "still think he can lead them."

But the costs of his compromises are becoming harder to stomach for average Afghans and some foreign donors. Critics say they have insulated many people from the benefits of democratic change and have hampered the running of the president's administration and local government.

Riots in Kabul on May 29, which killed 17 people in the worst violence in the capital since the Taliban were ousted, were a wake-up call, many there say.

The violence came after three Afghans were killed by a runaway American military truck, and four more killed when American soldiers fired into an angry crowd.

Protesters later rampaged through the streets, attacking foreign offices and chanting "Death to Karzai," an indication of how he is blamed for the growing disenchantment.

"He was shaken," said a Western diplomat, asking not to be named because of the political content of his remarks.

Recriminations against Karzai have continued, and his own missteps have not helped redeem his political standing.

In a reaction to the riots, Karzai appointed a powerful local commander with known links to organized crime as police chief of Kabul. He also appointed to senior police posts 13 former commanders who were to have been weeded out under long-awaited improvements in the police system.

Karzai's aides indicated that the steps were necessary to ensure security in the capital. But the appointments further alienated foreign diplomats and aid workers as well as ordinary Afghans.

"He is too accommodating," said Joanna Nathan, a senior analyst at the International Crisis Group, a policy research organization. "The police reform was incredibly disappointing."

Recent interviews with a range of Afghans illustrated a common theme of complaints against corrupt and self- serving government officials.

Earlier this month, 60 members of the Parliament, which has until now been largely supportive, signed a statement protesting the appointment of certain officials and the poor performance of his government.

A group of elders from Baghlan Province, in northern Afghanistan, said they had come to Kabul to seek the replacement of their governor, who they said was concerned only with his own power and did nothing for his people. But they had no success.

"We just want a neutral, impartial governor," Abdul Shukur Urfani, one of the representatives, said. "People will start demonstrating because they are dissatisfied with what the government is doing."

Karzai has dismissed many such problems as petty corruption, but the range of corruption in fact runs both large and small.

At one end of the scale is a housing scandal from three years ago, when cabinet ministers, in Karzai's absence, awarded themselves and friends prime real estate in Kabul, where land prices have shot up since the U.S. invasion.

An investigation was quietly dropped and the officials were allowed to build their ostentatious villas, which now tower above passers-by as a constant reminder of official excess. Elsewhere, though corruption is small in scale, it has an enormous impact on the poor, which is most of the population.

After months of widespread frustration in Afghanistan over corruption, the economy and a lack of justice and security, doubts about President Hamid Karzai have led to a crisis of confidence in the country.

Interviews with ordinary Afghans, foreign diplomats and Afghan officials make clear that the expanding Taliban insurgency in the south represents the most serious challenge yet to Karzai's presidency.

The insurgency has precipitated an eruption of doubts about Karzai, widely viewed as having failed to attend to a range of problems that have left Afghans asking what the government is doing.

Corruption is so widespread, the government apparently so lethargic, and the divide between rich and poor so great, that Karzai is losing public support, warn officials like Ahmad Fahim Hakim, vice chairman of the Afghan Independent Human Rights Commission.

"Nothing that he promised has materialized," Hakim said, echoing the comments of diplomats and others in Kabul, the capital. "Beneath the surface it is boiling."

For the first time since Karzai took power four and half years ago, Afghans and diplomats are speculating about who might replace him. Most agree that the answer for now is no one, leaving the fate of the U.S.-led military involvement in Afghanistan intimately tied to Karzai's own success or failure.

On Tuesday, Karzai's office announced that he had spoken that day with President George W. Bush, who assured him of continued American support. Karzai had also accepted Bush's invitation to visit Washington.

Karzai, a consummate tribal politician, has been the cornerstone of the U.S.-led effort to create a centralized democratic government in Afghanistan to replace the Taliban government driven from power in 2001 after the Sept. 11 attacks on the United States.

To his supporters, he has managed to keep the peace in a fractious society by giving regional warlords and armed leaders a stake in power, while managing to set the country on the road to a democratic future.

"The perception of growing insecurity has affected the psyche of the Afghan people," Jawed Ludin, the president's chief of staff, said in a telephone interview from Kabul. But he called it a reality check rather than a crisis.

He said that people "still trust" Karzai and "still think he can lead them."

But the costs of his compromises are becoming harder to stomach for average Afghans and some foreign donors. Critics say they have insulated many people from the benefits of democratic change and have hampered the running of the president's administration and local government.

Riots in Kabul on May 29, which killed 17 people in the worst violence in the capital since the Taliban were ousted, were a wake-up call, many there say.

The violence came after three Afghans were killed by a runaway American military truck, and four more killed when American soldiers fired into an angry crowd.

Protesters later rampaged through the streets, attacking foreign offices and chanting "Death to Karzai," an indication of how he is blamed for the growing disenchantment.

"He was shaken," said a Western diplomat, asking not to be named because of the political content of his remarks.

Recriminations against Karzai have continued, and his own missteps have not helped redeem his political standing.

In a reaction to the riots, Karzai appointed a powerful local commander with known links to organized crime as police chief of Kabul. He also appointed to senior police posts 13 former commanders who were to have been weeded out under long-awaited improvements in the police system.

Karzai's aides indicated that the steps were necessary to ensure security in the capital. But the appointments further alienated foreign diplomats and aid workers as well as ordinary Afghans.

"He is too accommodating," said Joanna Nathan, a senior analyst at the International Crisis Group, a policy research organization. "The police reform was incredibly disappointing."

Recent interviews with a range of Afghans illustrated a common theme of complaints against corrupt and self- serving government officials.

Earlier this month, 60 members of the Parliament, which has until now been largely supportive, signed a statement protesting the appointment of certain officials and the poor performance of his government.

A group of elders from Baghlan Province, in northern Afghanistan, said they had come to Kabul to seek the replacement of their governor, who they said was concerned only with his own power and did nothing for his people. But they had no success.

"We just want a neutral, impartial governor," Abdul Shukur Urfani, one of the representatives, said. "People will start demonstrating because they are dissatisfied with what the government is doing."

Karzai has dismissed many such problems as petty corruption, but the range of corruption in fact runs both large and small.

At one end of the scale is a housing scandal from three years ago, when cabinet ministers, in Karzai's absence, awarded themselves and friends prime real estate in Kabul, where land prices have shot up since the U.S. invasion.

An investigation was quietly dropped and the officials were allowed to build their ostentatious villas, which now tower above passers-by as a constant reminder of official excess. Elsewhere, though corruption is small in scale, it has an enormous impact on the poor, which is most of the population.

When the guns went silent in Aitta Shaab, a war-ravaged village close to the Israeli border, three children skipped through the rubble looking for a little fun.Hurdling over lumps of crushed concrete and dodging spikes of twisted metal, Sukna, Hassan and Merwa, aged 10 to 12, paused before a curious object. Sukna picked it up. The terrifying blast flung her to the ground, thrusting metal shards into her liver. Hassan's abdomen was cut open. Merwa was hit in the leg and arm.

"We thought it was just a little ball," said Hassan with a hoarse whisper in the intensive care ward at Tyre's Jabal Amel hospital. In the next bed Sukna, a ventilator cupped to her mouth and a tangle of tubes from her arms, said even less.Her mother watched anxiously. "The Israelis wanted to defeat Hizbullah," said Najah Saleh, 40. "But what did these children ever do to them?"

Israel may be pulling out of Lebanon but its soldiers leave behind a lethal legacy of this summer's 34-day war. The south is carpeted with unexploded cluster bombs, innocuous looking black canisters, barely larger than a torch battery, which pose a deadly threat to villagers stumbling back to their homes.

Mine-clearing teams scrambling across the region have logged 89 cluster bomb sites so far, and expect to find about 110 more. Meanwhile, casualties are being taken into hospital - four dead and 21 injured so far. Officials fear the toll could eventually stretch into the thousands.

"We already had a major landmine problem from previous Israeli invasions, but this is far worse," said Chris Clark of the UN Mine Action Coordination Centre in Tyre, standing before a map filled with flags indicating bomb sites.

Cluster bombs are permitted under international law, but UN and human rights officials claim Israel violated provisions forbidding their use in urban areas. "We're finding them in orange plantations, on streets, in cars, near hospitals - pretty much everywhere," Mr Clark said.

The bombs are ejected from artillery shells in mid-flight, showering a wide area with explosions that can kill within 10 metres (33ft). But up to a quarter fail to explode, creating minefields that kill civilians once the war is over. A decades-old campaign to ban them has failed.

Israel turned to cluster bombs in the last week of the war, apparently frustrated at the failure of conventional weapons to rout Hizbullah fighters from their foxholes. Mine-clearance teams are finding evidence pointing to their provenance: the US, the world's largest cluster bomb manufacturer, which gave Israel $2.2bn (£1.2bn) in military aid last year.

In Nabatiye, 15 people were injured in just one day along a bomb-strewn road. In Tibnin, 210 bombs were found around the town hospital. "That's about as inappropriate [a use of cluster bombs] as you can get," Mr Clark said.

In Yahmour, a hilly frontline village that has become a complex urban minefield, minesweepers from the UK-based Mine Action Group have cleared the main roads and some house entrances. But danger lurks everywhere. One elderly woman lost her leg in an explosion last Monday as she swept her yard.

Now holes pock the road, yellow tape appears around fields and houses, and residents tip-toe around the "grape bombs". Ilham Tarhini, 45, stood at her front door appealing for help. After returning from refuge in Syria three days ago she found tiny bomblets poking from the soil of her garden of olive trees. From where she was standing she could count eight: "I'm afraid to step into the streets."

But the most volatile payload sat in Jamil Zuhoor's living room. During the war an unexploded rocket packed with bomblets punched through his front wall, skidding to a halt before a chest of drawers. "I can't see us moving back in here for another year at least," he said, shutting the door of his shattered house.

The UN is appealing for money and minesweepers. With such help it hopes the worst-hit areas can be cleared within six months, Mr Clarke said. But until then residents live in fear.

Many share the blame equally between Israel and the US. "It's like we are living in a prison," said Aisa Hussain, 38, a Yahmour resident who has ordered his children to remain inside his house.

Strolling through the village he pointed to yet another tiny black canister perched under a tree. "You see what America is sending us," he said bitterly. "This is their idea of democracy."

Backstory

Cluster bombs were first used by the Germans in the second world war but have become a standard weapon for many countries, including Britain, France and Italy.

The most popular delivery device, the American-made M26 rocket, scatters 644 bomblets over 20,000 square metres. Under test conditions up to 23% of bomblets from the M26 failed to explode on impact. The United States keeps 370,000 such rockets in stock.

The M26 inflicted hundreds of civilian casualties in Iraq in 2003, says Human Rights Watch, over populated areas. The British army used M26s in the 1991 Gulf war

The US halted cluster bomb exports to Israel in 1982 after indiscriminate use against civilians but rescinded the ban in 1988. Belgium is the only country in the world that has banned cluster bombs.

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